Amisha In Sky Creation Pvt. Ltd. Vs Sandeep D Maheshwari (NCLAT Delhi)
Mortgage of Property Without Loan Disbursement Held Not to Create Financial Debt; Claim Rejection Upheld as Security Creation Alone Does Not Establish Financial Creditor Status; Mortgage-Based Arrangement Held Insufficient to Confer Secured Financial Creditor Status; Post-Dated Cheques and Interest Clauses Held Insufficient to Establish Financial Debt.
Two appeals were filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 against an order of the Adjudicating Authority (NCLT, Mumbai Bench) in which the claim of Amisha In Sky Creation Pvt. Ltd. was rejected, while simultaneously the Adjudicating Authority classified it as a secured financial creditor. One appeal challenged the rejection of the claim, and the other challenged the classification of the appellant as a secured financial creditor.
The dispute arose from a transaction where the Corporate Debtor obtained a loan from State Bank of India. Amisha had entered into a Deed of Agreement with the Corporate Debtor under which it permitted its properties to be mortgaged to SBI to facilitate the loan. The agreement allegedly provided for repayment within three years, payment of interest at 1.5% per month, and indemnification. Amisha also deposited title deeds and later sought release of its mortgaged properties, but the loan was not discharged and the property was not released. The Corporate Debtor later disputed the validity of the agreement, claiming lack of board authorization.
